How Public Schools Can Constitutionally Halt Cyberbullying: A Model Cyberbullying Policy that Considers First Amendment, Due Process, and Fourth Amendment Challenges

By: Naomi Harlin Goodno*

Introduction

Schoolyard bullying has been around for generations, but recently it has taken on a new, menacing face¾cyberbullying.  Now adolescents use technology to deliberately and repeatedly bully, harass, hassle, and threaten peers.  No longer does the bullying end once the school day ends.  With the use of technology, groups of bullies can relentlessly and anonymously attack twenty-four hours a day for the whole world to witness.  There is simply no escape.  Cyberbullying follows victims from their schools to their homes to their personal computer screens, with fresh injuries inflicted every time a new person clicks on an Internet site to witness or join in the bullying.  Adolescents use Internet sites like YouTube, or social networking sites like Facebook and MySpace, to repeatedly mock others by creating web pages, videos, and profiles.  Adolescents use their cell phones to take photos anytime and anywhere (including  bathrooms)[1] and then instantaneously post them online for others to rate, tag, discuss, and pass along.[2]

Cyberbullying is one of the top challenges facing public schools.[3]  There are many recurring legal problems confronting public schools.  By way of example, assume there are two public middle school children, Joe and Jane.  Joe punches Jane on the school’s property between classes.  The school is well within its rights to suspend Joe.[4]  Assume instead that Joe punches Jane off of school grounds, after school ends, and as the children are walking home.  Because the assault took place off of school property and after hours, the school does not have jurisdiction to punish Joe; rather, it is a matter for the parents and law enforcement.[5]

Assume instead that Joe creates an animated video game of Jane from his personal home computer at night.  In the game, Joe shows himself and other students punching Jane.  Joe posts the game on the Internet and it is quickly passed along to over one hundred other students at the same school, many of whom join in the virtual punching of Jane.  Some students log on to the site while at school, using their personal smart phones and laptops, and other students log onto the site after school at home using their personal computers.  Jane is terrified to go to school.

Can the school punish Joe or any of the other students?  In this hypothetical, Joe created the website off-campus and after school hours, so how is it different, if at all, from Joe physically punching Jane off-campus and after school hours?  Is Joe’s website protected by free speech?  Can the school search Joe’s and the other students’ personal cell phones or laptop computers to see if and when the website was accessed?  How does the public school respond, if at all, to this situation without trampling the constitutional and legal rights of the students?

Neither the legislatures nor the courts have been able to give public schools clear and consistent guidance on how to answer these questions.  Indeed, in a recent Third Circuit opinion, the court was deeply divided on how to decide such issues.[6]  There is also a circuit split on these issues making it ripe for the Supreme Court of the United States to resolve.[7]  Cyberbullying raises issues that require a fine balance between protecting the constitutional rights of public school students while also creating a safe learning environment.

The purpose of this Article is to set forth a comprehensive model cyberbullying policy for primary and secondary public schools that meets educational goals and considers constitutional challenges.  This first Part of this Article explores the current problems caused by cyberbullying and why these problems are unique from off-line bullying.  Because of the unique problems caused by cyberbullying, some state legislatures are beginning to enact specific laws to address cyberbullying.  The current statutes are summarized in Appendix A of this Article.  Those statutes, however, provide little to no direction on how public schools should create cyberbullying policies that are constitutional while also meeting statutory requirements.  Thus, Appendix B of this Article sets forth a model cyberbullying policy for public schools.

The second and main Part of this Article considers three constitutional challenges public schools face in adopting a cyberbullying policy.  First, public schools wrestle with how to define “cyberbullying” without violating the students’ First Amendment rights to free speech.  The crux of the problem concerns speech that students make off of school grounds but that impacts other students at school (for example, creating a website at home, which is then accessed at school, that harasses another student).  This Part sets forth a novel way of approaching the conflicting legal precedents by separately considering jurisdictional and substantive issues.  The second constitutional challenge is composing a cyberbullying policy that does not violate due process rights or that is written in language that is unconstitutionally vague or overbroad.  The third constitutional challenge is formulating a way for school officials to know when they can search students’ personal electronic devices without violating the Fourth Amendment.

The final Part of this Article addresses pedagogical concerns such as reporting requirements, disciplinary matters, and educating students, parents, and school officials about cyberbullying.  All of these topics should be considered in order to construct a comprehensive cyberbullying policy.  The model cyberbullying policy for public schools set forth in Appendix B of this Article adopts language that attempts to combat cyberbullying while complying with constitutional requirements and meeting educational goals.

I.  Current Problems

Cyberbullying is a major problem causing significant harm.[8]  There is no dispute that students today use e-mail, messaging, texting, and social networking sites on almost an hourly basis to stay in touch with one another.[9]  In one survey of thirteen- to seventeen-year-olds, thirty-five percent reported being the targets of Internet harassment including “rude or nasty comments, rumors, and threatening or aggressive messages.”[10]  As one teenage victim stated: “It makes me hurt both physically and mentally.  It scares me and takes away all my confidence to make me feel sick and worthless.”[11]  Indeed, in March of 2011, the White House held a special conference that specifically focused on bullying prevention where the President concluded that cyberbullying is a serious problem facing the United States.[12]  Cyberbullying is linked to “low self-esteem, family problems, academic problems, school violence, and delinquent behavior . . . [and] suicidal thoughts.”[13]  Studies have shown that, of adolescents who have contemplated suicide, “cyberbullying victims were almost twice as likely to have attempted suicide compared to youth who had not experienced cyberbullying.”[14]

Recent cases: There have been far too many recent cyberbullying cases that have ended in such tragedy.  One case involved Tyler Clementi, a Rutgers University freshman, who leaped to his death after his roommate secretly taped and posted online a video of Clementi having a “sexual encounter” with another young man.[15]  Perhaps even more troubling are those cases that involve young school-age children, both in middle school and high school.  Such cases sadly illustrate how a child’s vulnerabilities are escalated by the use of the wider forum of technology.  There were the three middle school boys who invited fellow students to “kick a ginger” on a specific day which led to the attacks on at least seven red-haired middle school children.[16]  There were middle school boys who created a video game on a website where “they virtually ‘beat up’ one of their classmates on a regular basis and invited others to join them in the beatings.”[17]  There were other middle school children who created a website where “middle school girls were pictured on a ‘Hot or Not’ list that was e-mailed around to be voted on.”[18]

There was thirteen-year-old Megan Meier, who committed suicide after being cyberbullied by a classmate’s parent who adopted a false identity on MySpace as a boy, wooed her, and then viciously turned against her and posted that “[t]he world would be a better place without [her].”[19]  There was the fourteen-year-old boy who sent death threats on Facebook to two other classmates he believed were interested in his girlfriend.[20]  There were the three Louisiana high school students who were arrested for cyberstalking after they created competing websites with the posting of insults and graphically violent poems.[21]  There were two Florida girls, aged fifteen and sixteen, who were arrested for creating a fake Facebook page in another classmate’s name and posting a picture of the girl’s face on a “nude prepubescent girl’s body” with other disturbing images and statements.[22]

There was also Phoebe Prince, who was relentlessly cyberbullied by the students at her high school for three months before she hung herself.[23]  Classmates posted multiple threads on Facebook about how Phoebe was an “Irish slut” and a “poser.”[24]  Ultimately, six teenagers were criminally charged—including two boys charged with statutory rape of a minor—after the group of teenagers taunted, threatened, shoved, and sent demeaning text messages to Phoebe.[25]  One of the most troubling aspects of Phoebe’s case is that the school administrators were well aware of the cyberbullying[26] and, yet, the school did not take any action.[27]  “How long can the school department ignore the increasing rate of bullying before reality sets in?” two students asked in a school newspaper article.[28]

Public schools without guidance: For school-age children, incidents of cyberbullying are often ignored.[29]  Schools are ill-equipped to deal with cyberbullying.[30]  Indeed, such failures open up school districts to lawsuits.[31]  For example, a student’s family sued a New York school district for failing to protect their homosexual son from cyberbullying.[32]  There is no question that schools must be more proactive about stopping students from cyberbullying.[33]  But the blame does not lie completely with the schools.  Many schools want to help but do not know where the boundaries of discipline begin and where they end.  “Schools are finding themselves at a loss, particularly because of vague laws,”[34] or because there are no laws or policies at all, to instruct them on how to address cyberbullying.  When can a school legally punish a student for speech that occurs off-campus?  To what extent can schools search students’ personal computers and cell phones for evidence of cyberbullying without running afoul of the students’ constitutional rights?

These are the questions haunting the school districts.  School administrators know that there is a problem, but they do not know to what extent they are allowed to be a part of the solution.  Across the nation, principals have responded to student-on-student cyberbullying in “dramatically different ways.”[35]  One principal of a middle school shared his frustration about student cyberbullying incidents: “All we are doing is reacting, . . . .  We can’t seem to get ahead of the curve.”[36]  Another middle school principal said that for schools it is a lose-lose situation: “I have parents who thank me for getting involved [with cyberbullying incidents] . . . and parents who say ‘[i]t didn’t happen on school property, stay out of my life.’”[37]

Courts in conflict: Courts are conflicted in how to deal with cyberbullying and they fail to clearly specify whether (and when) a school has jurisdiction to regulate off-campus speech that bullies others.[38]  The Supreme Court has yet to rule on this issue and lower courts are all over the board.[39]  For example, one district court found that a school could not discipline a student who created a webpage entitled “Satan’s web page,” in which he listed names of students under the heading “people I wish would die.”[40]  Although the student admitted he may have used school computers, the court held that the school’s disciplinary measures violated the student’s First Amendment rights because there was “[no] proof of disruption to the school on-campus activity.”[41]  In contrast, the Supreme Court of Pennsylvania upheld as constitutional the expulsion of a student who created a website called “Teacher Sux,” in which the student made derogatory comments about a teacher—including why the teacher should die.[42]

The Third Circuit’s recent decisions are illustrative of the unclear law concerning cyberbullying.  Very recently, in June 2011, the Third Circuit revisited en banc two of its recent opinions concerning cyberbullying.  In one case, the court initially upheld as constitutional a school’s disciplinary action of a student who created a fake, offensive MySpace page of a principal—but that decision was reversed by a deeply fractured en banc court.[43]  The other en banc opinion held that a school’s disciplinary action was unconstitutional for very similar behavior.[44]  The law in the area of schools regulating cyberbullying is unmistakably in flux, which leaves schools without clear guidance as to how to address the problem.

A.            Bullying versus Cyberbullying

It is apparent that neither the courts nor the schools are clear on how legally to deal with the rampant problem of cyberbullying.  What makes the legal framework for cyberbullying so difficult?  The answer, as set forth in this Subpart, is that cyberbullying differs from off-line bullying such that current laws and school policies are often inadequate to deal with this new forum for bullying.

Cyberbullying, for the purposes of this Article, is distinguishable from off-line bullying by the use of electronic technology to deliberately and repeatedly harass or intimidate fellow students.  Off-line bullying, done face-to-face, has long been a problem in our school system.[45]  While schools and state legislatures have historically taken some steps to curtail schoolyard bullying,[46] these steps are insufficient to address cyberbullying because the scope of cyberbullying is much more immense than off-line bullying.  New technology has not only allowed for new outlets to bully—it has changed the face of bullying.  Cyberbullying presents new problems that “old-fashioned” antibullying laws and policies cannot address for at least six reasons.

First, cyberbullying, unlike off-line bullying, is ubiquitous.  Harassing statements and comments made on the Internet can be made on- and off-campus, day and night.[47]  The victim’s perception, and perhaps the reality, is that an entire school, neighborhood, and community can be involved in the bullying.[48]  With a few keystrokes, the bullying statements can be “circulated far and wide in an instant.”[49]  Therefore, antibullying policies that only address on-campus bullying cannot sufficiently address cyberbullying, yet courts and school officials are confused as to how and to what extent schools can regulate off-campus speech.

Second, cyberbullying allows for much greater anonymity than off-line bullying.[50]  Bullies can easily take on fake Internet identities or even take on the identities of other students so that “victims often do not know who the bully is, or why they are being targeted.”[51]  As one fifteen-year-old explained: “I get mean messages on Formspring,[[52]] with people telling me I’m fat and ugly and stupid.  I don’t know what I ever did to anyone.  I wish it wasn’t anonymous.”[53]  Because of anonymity, cyberbullies may not fit the profile of the typical bully.[54]  For example, three Louisiana students were recently arrested for cyberbullying, despite the fact that they were all honor students.[55]  Anonymity, therefore, not only creates problems for school officials who are investigating cyberbullying (school officials may be at a loss as to what would entail constitutional searches in their investigations) but also may impact which remedies for cyberbullying are most effective.

Third, cyberbullying gives bullies physical distance from their victims while at the same time allowing for a greater audience—which may encourage even more bullying.[56]  The audience mentality allows for others to “join in on ‘the fun’” who may not have done so in a physical confrontation.[57]  Moreover, audience members can easily perpetuate the bullying by adding online comments or by simply forwarding messages and links to others. [58]  Off-line bullying policies fail to address how cyberbullying quickly involves numerous parties.

Fourth, children are often more technologically adept than adults.  Children use and explore new technologies every day,[59] while teachers and parents remain oblivious.[60]  This allows for undetected and unregulated outlets for bullying.

Finally, cyberbullying, unlike off-line bullying, is permanent and “usually irrevocable,”[61] trailing its victims from childhood to adulthood.  Not only does cyberbullying follow students from school to their homes, but harassing statements can be accessed and relived over and over again, even years later.  As one commentator aptly put it: “The Web never stops and it never forgets.”[62]  Because of the possible life-long impact of cyberbullying, it is crucial that school officials are equipped with the legal and necessary tools to try to prevent it.

It is largely because of these differences between cyberbullying and off-line bullying that many current antibullying statutes and school policies are inadequate.  As the next Subpart addresses, even states with antibullying statutes have gaps that do not cover all aspects of cyberbullying.

B.                        Current Statutes and Policies

Appendix A of this Article sets forth a chart analyzing the current state and federal antibullying laws as well as proposed bills.  Overall, on the positive side, a large majority of state legislatures have enacted antibullying laws.  However, some of these state laws fail to address cyberbullying, and even those laws that have tried to do so often give inadequate guidance to public school administrators on how to enforce the law without violating students’ constitutional and legal rights.

Specifically, the District of Columbia and forty-five states have enacted general antibullying laws (mainly targeting off-line bullying).[63]  Only Hawaii, Michigan, Montana, North Dakota and South Dakota lack such statutes.[64]  Hawaii[65] and Michigan,[66] along with the federal government,[67] have proposed antibullying laws, which are currently pending.  While forty-three states require public schools to have a policy regarding bullying,[68] only a minority of those states have model school policies.[69]

The gaps in these laws become even more evident when looking at how cyberbullying is specifically addressed.  Again, the good news is that some states attempt to address the cyberbullying problem in antibullying statutes.  Six states expressly prohibit “cyberbullying,”[70] and twenty-eight states prohibit “electronic harassment,”[71] which likely encompasses most aspects of cyberbullying.

The problem is that, of those states with antibullying statutes, only ten states have model policies.[72]  Those ten model policies fail to fully and adequately give school officials guidance on how to deal with the unique aspects of cyberbullying, further compounding the problem.[73]  For example, neither “cyberbullying” nor “electronic harassment” is even mentioned in the California Department of Education’s “Sample Policy for Bullying Prevention.”[74]  Likewise, the model antibullying policies for Oklahoma and Rhode Island[75] also fail to include any reference to cyberbullying.  Indeed, Colorado’s model policy readily identifies its own gaps: “the [school] district should consult with its own legal counsel to determine appropriate language.”[76]  Such model policies give little guidance to school administrators about how to deal with cyberbullying.

Even those state legislatures that have created model school policies referencing “cyberbullying” fall short.  For example, the Delaware, Florida, Ohio, and South Carolina[77] model school policies define cyberbullying, but fail to give public school officials any guidance on how to apply the definition so as not to run afoul of free speech and other constitutional and legal protections.

Thus, while state legislatures, for the most part, are taking great strides by including cyberbullying in their antibullying legislation, there has been little to no guidance on how public school officials can legally implement policies to deal with cyberbullying.  The remainder of this Article attempts to set forth a constitutional model cyberbullying policy that public schools can adopt and put into action.

II.  A Constitutional Cyberbullying Policy for Primary and Secondary Public Schools: Considering First Amendment, Due Process, and Fourth Amendment Challenges

It is imperative to note at the outset that students’ civil rights must be protected.  Indeed, “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”[78]  As one judge explained:

In order to maintain a thriving democracy, students cannot be unreasonably encumbered in their freedom to express moral, political, and social ideals and beliefs.  The classroom is peculiarly the “marketplace of ideas.”  The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth “out of a multitude of tongues, (rather) than through any kind of authoritative selection.” . . . Schools should foster an environment of learning that is vital to the functioning of a democratic system and the maturation of a civic body.[79]

The exercise of students’ civil rights in public school, however, has to be “applied in light of the special characteristics of the school environment.”[80]  The constitutional rights of public school students “are not automatically coextensive with the rights of adults in other settings.”[81]  Thus, in addressing the First Amendment, Due Process, and Fourth Amendment issues related to cyberbullying in public schools, there must be a balance between safeguarding students’ constitutional rights and allowing public school officials to maintain a safe and thriving learning environment.[82]  This Part of the Article attempts to set forth an analysis that strikes this balance.

A.            First Amendment Issues: Defining “Cyberbullying”

It is well established that the First Amendment right to freedom of speech extends to students in public schools.[83]  As the United States Supreme Court declared over forty years ago, public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[84]  However, the Supreme Court also recognized the need for schools to be able to exercise a certain amount of authority over the speech of their students to retain order and control of the educational environment.[85]  One of the main concerns is that school cyberbullying policies will run afoul of the First Amendment and interfere with students’ rights to free speech.[86]  Therefore, to address whether or not a specific cyberbullying policy is constitutional, the extent to which student speech is protected by the First Amendment must be carefully examined.  There is no Supreme Court case squarely on point.[87]  The split in lower courts’ decisions shows that the law is ambiguous.[88]  Even the Supreme Court has expressed confusion over how precedents apply to the burgeoning issues involving student free speech, stating that “[t]here is some uncertainty at the outer boundaries as to when courts should apply school speech precedents.”[89]

This Subpart sets forth a novel First Amendment constitutional framework to consider when analyzing public school cyberbullying polices.  The two-prong framework involves both a jurisdictional and substantive inquiry:[90] (1) The school must first decide whether it has jurisdiction over the speech.  The legal standard differs depending on whether the speech originated on- or off-campus (the harder cyberbullying cases usually involve speech originating off-campus);[91] if the school has proper jurisdiction, then (2) the school must determine whether, as a matter of substantive law, it can indeed regulate the speech.  This second inquiry will fall into two subcategories: (i) whether the school is able to categorically regulate the speech; and if not, then (ii) under the “Tinker standard,”[92] whether the speech materially disrupts class work or substantially impinges on the rights of others.[93]

1. Jurisdictional Matters

Speech Originating On-Campus: There is Supreme Court precedent dictating that schools have jurisdiction to regulate speech that originates on school campuses,[94] or at school-sanctioned activities that are equivalent to being on the school campus.[95]  Therefore, in the cyberbullying context, it appears to be within the school’s jurisdiction to regulate speech that originates on-campus whether the student uses the school’s resources or the student uses his or her own personal technology while on-campus.

Speech Originating Off-Campus: The Supreme Court has not ruled on whether schools have jurisdiction over student speech that originates off-campus or is not related to a school-sponsored activity.  There are, however, a number of cases that deal with this issue, some of which involve the Internet.[96]  Unfortunately, the holdings in these cases are inconsistent.[97]

The cases can be grouped into three general categories.  First, in a few cases, the courts skip the jurisdictional question all together.[98]  However, the Third Circuit reversed a district court decision in which the jurisdictional question was not addressed.[99]  Thus, it would behoove one, especially given that most cyberbullying originates off-campus, to thoroughly address the jurisdictional issue before attempting to regulate any off-campus speech.[100]

Second, some courts require that it must be “foreseeable” that the speech would reach the campus for the school to regulate it.  If it was “foreseeable” that the speech would reach campus, then it can be regarded as “on-campus” speech and the school would have jurisdiction over it.[101]

Third, some courts have ruled that there must be a “sufficient nexus” between the speech and the school before a school has the jurisdiction to punish the student speech.[102]  However, courts are split as to what constitutes this “sufficient nexus.”  Some courts have broadly applied the rule finding the connection is established if the speech is directed at a school-specific audience;[103] or if the speech has been brought on to the campus, even if it was not the student in question who did so.[104]  Other courts, however, have narrowly applied the rule and found no substantial nexus between the speech and the school because the student speech, “did not attempt to engage other students in any on-campus behavior.”[105]

Given that cyberbullying easily spreads (Internet links and text messages can easily be forwarded to numerous people with the click of a button), courts should adopt the broad application of the “sufficient nexus” test.  For purposes of a cyberbullying policy, schools should consider using both the “foreseeability” and the “sufficient nexus” language.[106]  Such a jurisdictional requirement will also likely protect a cyberbullying policy from a challenge that the policy is constitutionally overbroad.[107]  These legal standards are incorporated in the Model Cyberbullying Policy in Appendix B of this Article.

2. Substantive Matters

Once the school’s jurisdiction has been established, the next inquiry is whether the school can regulate the speech without violating the First Amendment.  Based on precedent, schools can do so in two instances: (i) if the speech is categorically prohibited, or (ii) if the Tinker standard is met.  Each of these rules will be taken in turn.

Categorically prohibited speech: Schools can wholly regulate two categories of speech, and a cyberbullying policy should address both.[108]  First, under Hazelwood, schools can regulate speech that “bear[s] the imprimatur of the school.”[109]  Thus, for example, if a cyberbully uses the school’s emblem on an Internet message intended to harass another student, the school can discipline the cyberbully regardless of whether the speech originated on- or off-campus.

Second, it is widely accepted that, even under the broadest reading of the First Amendment, “true threats” are not protected.[110]  Though the threshold for determining whether a statement is a “true threat” is fairly high, courts have held that, “[i]n light of the violence prevalent in schools today, school officials are justified in taking very seriously student threats against faculty or other students.”[111]  Any school cyberbullying policy that requires punishment for a student who makes a “true threat” against a teacher or another student will be constitutional.

Courts, however, often do not decide whether particular speech reaches the level of a true threat because they often do not have to.  If a court finds that the speech can be regulated by the Tinker standard (requiring a lower threshold), then the school’s actions will be constitutionally justified regardless of whether the speech constituted a true threat.[112]  This leads to the second type of speech that schools can regulate¾student speech which satisfies the Tinker standard.  This second type of speech is addressed in the next Subpart of this Article.[113]

Student Speech that can be regulated under the Tinker Standard: In the 1969 seminal case Tinker v. Des Moines, the Supreme Court held that it was unconstitutional for a high school to suspend students for wearing black armbands in silent protest of the Vietnam War.[114]  The Court recognized that a school had authority to control student speech but that “it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”[115]  The Court set out a two-part standard for when schools could constitutionally regulate student speech: “[C]onduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.”[116]  Therefore, under the Tinker standard, schools can regulate student speech that either (i) materially disrupts the operation of the school, or (ii) substantially impinges upon the rights of others.[117]

Schools, therefore, should incorporate the language of the Tinker two-part standard into their cyberbullying policy.[118]  There is, however, some ambiguity in its application.  Courts have unevenly applied the first Tinker standard (that schools can regulate student speech that causes “material disruption”).[119]  Courts tend to consider speech as having materially disrupted school activities if administrators are forced to interrupt their regular duties to deal with the disruption.[120]  The disruption must be a real disturbance and something more than a “buzz” about the speech.[121]  However, when the speech is violent, threatening, or sexually explicit, courts have often found that there was a material disruption.[122]  Moreover, courts have also found that schools may discipline students for speech where “a forecast of substantial and material disruption was reasonable.”[123]

Notably, Tinker is different than most cyberbullying cases because Tinker involved political speech.  Arguably, then, the threshold for establishing a “material disruption” may be lower for purely hurtful speech.[124]  As one scholar noted, “cyberbullying incidents that occur at school—or that originate off-campus but ultimately result in a substantial disruption of the learning environment—are well within the school’s legal authority to intervene.”[125]

Though Tinker clearly set out a two-prong standard under which a school may regulate student speech, the trend has been for courts to focus on the first prong (regulating speech that causes a material disruption).  Courts have, for the most part, ignored the possibility of the second prong (regulating speech that substantially impinges on the rights of others).[126]  Although many courts have not yet embraced this second prong of Tinker, the prong may cover many instances of cyberbullying.  For example, if a cyberbully harasses a victim to the point at which the victim misses school or suffers emotional distress, then a school could arguably discipline the cyberbully on the grounds that the student substantially impinged on the rights of another student.

In sum, by combining precedent (although ambiguous at times) a school should be able to draft a cyberbullying policy that would survive First Amendment free speech challenges.  First, the policy should establish that the school will regulate any student speech within its jurisdiction, which includes (i) all speech originating on-campus and (ii) speech originating off-campus if it was “foreseeable” that the speech would reach campus or if there is a “sufficient nexus” between the off-campus speech and the school.  Once jurisdiction is established, then the cyberbullying policy should set forth that the school can (i) wholly regulate speech that “bear[s] the imprimatur of the school” or contains “true threats,” or (ii) regulate speech that “materially disrupts” school operations or “substantially impinge[s] on the rights” of others at the school.[127]

B.            Due Process Issues: Creating a Nonvague Policy with Proper Notice Requirements

In addition to First Amendment challenges, school policies may also be challenged as unconstitutionally vague.[128]  A regulation is unconstitutionally vague, and thus a violation of due process, if it does not give “fair notice of the regulation’s reach” and requires students “to guess as to the contours of its proscriptions.”[129]  Thus, there are two possible vagueness challenges to school cyberbullying policies: the policy is (1) vague as to the definition of what constitutes cyberbullying, or (2) fails to give proper notice of the regulation.  Each of these issues will be taken in turn.

1. Nonvague Explanation of “Cyberbullying”

Specificity of terms is especially important when a regulation, such as a public school cyberbullying policy, is a “content-based regulation of speech.”[130]  Although a school has “a certain degree of flexibility in its disciplinary procedures,” its regulations may still be found to be unconstitutionally vague or overbroad.[131]  The most common reason for a court to sustain a vague or overbroad challenge of a school policy is when specific terms within the policy are not defined.[132]  Therefore, a cyberbullying policy should set forth a clear definition of “cyberbullying.”

As discussed more fully in Part II.A above, this definition should include language as set forth in Hazelwood, Watts, and Tinker.[133]  For example, a cyberbullying policy can prohibit the use of electronic devices to make an electronic communication that is meant to: (1) be a “true threat” against a student or school administrator;[134] (2) “materially disrupt” school operations;[135] or (3) substantially “impinge on the rights” of others at the school.[136]  This third prohibition of “impinging on others” could include: creating “reasonable fear of harm to the student’s person or property;”[137] creating “a substantially detrimental effect on the student’s physical or mental health;”[138] “substantially interfering with a student’s academic performance . . . [or] interfering with the student’s ability to participate in or benefit from the services, activities, or privileges provided by a school;”[139] or being “so severe, persistent, or pervasive” so as to cause “substantial emotional distress.”[140]

The United States Supreme Court has found that for antidiscrimination statutes, “[e]numeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply.”[141]  Thus, another way to make the term “cyberbullying” less vague is to set forth a prohibition of cyberbullying based on enumerated characteristics, such as those describing traditionally protected groups or identity-based groups.[142]  For example, in its definition of cyberbullying, the policy should prohibit cyberbullying on the basis of race, color, national origin, gender, religion, disability, sexual orientation, or gender identity to remove any doubt that cyberbullying is prohibited regarding any of these characteristics.[143]  As one study showed, schools that have policies with enumerated categories report less bullying than schools that do not.[144]  Policies should be drafted so that inclusion of enumerated categories does not affect protection for students who do not fall into any of them.[145]

2. Providing Proper Notice

To make certain that students’ due process rights are not violated, cyberbullying policies must give students and parents notice of the details of the policy.  There are three considerations to ensure proper notice is given.  First, the cyberbullying policy must clearly set forth what conduct is forbidden.  For example, one student raised a successful due process challenge to discipline stemming from a violation of the school’s cyberbullying policy because the policy failed to “put students on notice that off-campus speech or conduct which cause[d] a disruption to school activities may subject them to discipline.”[146]  The court explained such notice was necessary so that students could “modify their conduct in conformity with the school rules.”[147]  Therefore, a cyberbullying policy should clearly set forth the what, who, and when.  In other words, the policy should not only define what constitutes “cyberbullying” and against whom it is prohibited (such as enumerated groups of individuals), but it must also explain when the school can exercise jurisdictional authority over the conduct.[148]

Second, the school must ensure that students and parents receive actual notice of the cyberbullying policy.  Students’ due process rights are implicated if they do not have adequate and actual notice of a school’s policy regarding punishment for certain acts.  To meet the actual notice requirement, one scholar suggests that schools should be required to create cyberbullying policies that require parents to receive copies of the school’s cyberbullying policy, along with information on how to prevent cyberbullying and what to do if their child is being cyberbullied.[149]  Florida’s model bullying policy does just that; it suggests that the student handbook include the bullying policy, that school officials should inform all students and parents in writing of the bullying policy at the beginning of each school year, and that there should be an annual process for discussing the policy with students in a student assembly.[150]  Another way schools can fulfill the actual notice requirement is to implement an “acceptable use policy” for the use of the school’s technology resources, which establishes that school technology cannot be used to cyberbully another student.  The “acceptable use policy” should be in the form of a contract, which parents and students must sign before students are able to use the school’s technology resources.[151]

Third, as some state statutes already require, a valid cyberbullying policy should also include a procedure for immediately notifying parents if the school discovers that their child is involved in a cyberbullying incident.  Eleven state statutes require schools to notify the parents of both the victim and the cyberbully.[152]  The West Virginia statute requires schools to notify parents of any student involved in a cyberbullying incident.[153]  Some scholars suggest that schools should notify the alleged cyberbully’s parents prior to any investigation.[154]  After the investigation, the cyberbully and his parents should be notified of the potential consequences to which they may be subjected.[155]

C.            The Fourth Amendment Issues: Allowing for Reasonable Searches and Seizures

The Fourth Amendment raises additional concerns in cyberbullying cases.  Once an incident of alleged cyberbullying is reported to school officials, how can the school investigate the allegations without violating the Fourth Amendment’s prohibition of unreasonable searches and seizures?[156]  To put the issue in context, consider the illustrative hypothetical set forth in the Introduction of this Article: Joe and Jane are middle school students.  Jane’s parents discover that Joe has posted on the Internet an animated game depicting himself and other students punching Jane.  Joe has forwarded a link to the game to many of his school friends, who have in turn forwarded it to other students.  During school hours, while on-campus, numerous students, including Joe, have logged onto the website and participated in the game.  Jane’s parents report the website to school officials.

Can school officials search Joe’s cell phone and personal laptop computer to see if he did indeed create the website?  Can school officials search other students’ personal electronic devices to see if they accessed the website?  If the school decides to search Joe’s cell phone, can school officials also search the cell phone for other instances of cyberbullying or violations of school rules?  All of these questions pose novel issues under the Fourth Amendment.  There are no Supreme Court cases on point.  Moreover, those states that have drafted model bullying policies also fail to address these issues.[157]  Schools, therefore, are once again left without any guidance.  The discussion below aims to answer these questions.

1. The T.L.O. Legal Standard

The controlling authority on the Fourth Amendment application to schools is the 1985 Supreme Court case New Jersey v. T.L.O.[158]  This case involved a teacher who found high school students smoking in the bathroom in violation of school rules.[159]  School officials searched one student’s purse for cigarettes.[160]  After finding cigarettes, the school official continued to search the purse and subsequently found drug paraphernalia.[161]  The student sought to suppress the evidence found in the purse as a violation of the Fourth Amendment.[162]  The Supreme Court first determined that, under the Fourth Amendment, students have a legitimate expectation of privacy in the private property they bring to school.[163]  The students’ interest, however, must be balanced against the interest of school officials “in maintaining discipline in the classroom and on school grounds.”[164]

The Court established a two-step inquiry for determining when it is reasonable for a public school official to search students’ personal property.[165]  First, the search must be justified at inception, meaning there must be “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.”[166]  Second, the scope of the search must be “reasonably related to the objective of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”[167]  Based on this two-prong test, the Court in T.L.O. held the search of the student’s purse did not violate the Fourth Amendment because it was based on an individualized suspicion that she had violated the school rules (first that she was smoking and second that she was using illegal drugs) and was not overly intrusive.[168]  Notably, under T.L.O., once a reasonable suspicion of wrongdoing exists, a search of a student’s personal belongings does not require the student’s consent or the consent of his parents.[169]

Although courts have not specifically dealt with the Fourth Amendment’s role in cyberbullying, two cases have applied the T.L.O. test to the possession and use of cell phones in violation of school rules.  In Klump v. Nazareth Area School District, the school had a policy prohibiting use or display of cell phones during school hours.[170]  The student, Klump, violated the rule when his cell phone fell out of his pocket during class.[171]  After his teacher confiscated his phone, the teacher, along with the principal, then used the phone to call nine other students listed in Klump’s phone directory to determine if they were violating school policy.[172]  They also accessed Klump’s text messages and e-mail, and had an instant messaging conversation with Klump’s younger brother without identifying themselves.[173]  The school officials asserted that they found a drug-related text message while searching the phone.[174]  The court held the search was unreasonable.[175]  While the teacher was justified in seizing the cell phone because it violated the school policy, the search of the phone failed the first part of the T.L.O. test because it was not justified at inception.[176]  The teacher and principal had no reason to suspect that Klump was violating any other school policy other than the possession of the cell phone, thus, seizure alone would have been acceptable.  Notably, there were no facts suggesting that Klump had used his cell phone while on-campus.[177]  Instead the school authorities were impermissibly searching the phone “as a tool to catch other students’ violations.”[178]

In the second cell phone case on point, J.W. v. Desoto County School District, the school district also had a policy prohibiting students from possessing or using cell phones at school.[179]  Student R.W. was caught violating this policy when he opened his cell phone to retrieve a text message during class.[180]  The teacher took R.W.’s phone, opened it, and viewed personal photos stored on it.[181]  R.W. was ordered into the principal’s office where the principal and police sergeant also opened the phone and examined the photographs.[182]  One photo showed another student holding a B.B. gun.[183]  Based on that photo, R.W. was expelled for having gang pictures.[184]  The court applied the T.L.O. test and upheld both the seizure and search of the phone.[185]  The court explained that upon witnessing a student violating the rule, it was reasonable for a school official to seek to determine to what end the student was improperly using the phone.[186]  The court noted the student could have been using his cell phone at school to cheat or communicate with another student who would also be subject to discipline.[187]

The court in Desoto distinguished Klump by explaining that in Klump the student unintentionally violated the school policy (the phone fell out of his pocket) and the school officials used that accident as a pretext for a “fishing expedition.”[188]  In contrast, here R.W. knowingly violated the rules by bringing the phone on school grounds and then using it.[189]  Moreover, as opposed to the “fishing expedition” that occurred in Klump (misleadingly calling other students and responding to text messages and emails using a student’s electronic identity),[190] in R.W.’s case the search by the school officials was limited to a search of the phone.[191]

Incorporating the T.L.O. Standard into a Cyberbullying Policy: the search must (1) have “reasonable grounds;” and (2) be limited in “scope.” Cyberbullying policies should incorporate the two-prong test articulated in T.L.O.[192]  First, the policy should indicate that school officials[193] can search a student’s personal electronic device for evidence of cyberbullying only when there are “reasonable grounds” that the search will lead to evidence of cyberbullying by that person (presumably a violation of a school rule).  The policy should also make clear that, unlike in Klump, school officials should not be allowed to misleadingly use the search as a ploy to try to catch other students violating the rules.

As Klump and Desoto illustrate, what constitutes “reasonable grounds” will be a fact-specific inquiry.[194]  For example, applying the first prong of the T.L.O. standard to the illustrative hypothetical set forth at the beginning of this Part of the Article, if Joe, or any other student, was impermissibly using (not just possessing)[195] his electronic device at school, then there would be reasonable grounds to search it to determine to what ends the student was improperly using the electronic device.  The analysis, however, is slightly more complex if the only fact before school officials is a call from Jane’s parents reporting alleged cyberbullying (or an allegation of cyberbullying only from Jane).  Then school officials would have to consider factors such as the perceived credibility of the person making the report[196] and whether the electronic record (e.g., a history of postings or visits to a website, emails, or bullying text messages on a cell phone) is likely to still be accessible.

A school’s cyberbullying policy should also include language incorporating the second prong of the T.L.O. standard, namely a search of a student’s electronic device should be limited in scope.[197]  If there is suspicion of only a cyberbullying text message, or accessing a website as in the hypothetical set forth above involving Joe, then photographs stored on the electronic device should be left alone.  As the Court stated in T.L.O, teachers and school administrators should use their “common sense” in determining the appropriate scope of the search.[198]  Generally, call logs and text logs will be within the scope of the search to determine who else may have received or sent the bullying message, or may have accessed or posted on the bullying website.[199]  However, as addressed in Klump, school officials should not misleadingly or anonymously contact students on these logs to dupe them into admitting further violation of school rules.[200]

2. Special Legal Concerns for Sexting

Sexting is the sending or receiving of sexually explicit messages, images, or videos between cell phones, or posting them on the Internet (such as on Facebook or MySpace).[201]  Unfortunately, sexting is becoming all too popular among high school and middle school students.[202]  These messages are often sent because of romantic interests but can quickly turn into an unforgiving and relentless form of cyberbullying.[203]  Because many child pornography laws prohibit the distribution of child pornography without exception, minors who sext each other can be, and indeed have been, criminally prosecuted.[204]  The possibility of criminal legal liability can also confront school officials.  There are currently no statutory exceptions allowing for school officials to possess or distribute nude images of minors;[205] therefore, school officials who are investigating allegations of cyberbullying that involve sexting could be subject to state and federal criminal felony charges.[206]  One Pennsylvania school board is currently under criminal investigation for improper conduct and disseminating child pornography when it was alleged that phones displaying pornographic images and video clips involving minor students were passed around and viewed by more school employees than necessary to investigate the incident.[207]

Moreover, courts have yet to address the possible civil liability of school officials who uncover and examine nude photos of students.  The American Civil Liberties Union (“ACLU”) recently pursued a private suit against a Pennsylvania district attorney (after privately settling with the school district) when explicit photos on a female student’s cell phone were discovered by the principal and turned over to the district attorney.[208]  In this case, a teacher confiscated a female student’s cell phone when the student used it during class.[209]  The teacher turned the phone over to the principal who informed the student that he had found sexually explicit photos and turned them over to law enforcement.[210]  The cell phone contained photos of the female student in various states of nudity intended to be seen only by the student’s boyfriend and herself.[211]  The ACLU alleges the student’s phone was illegally searched.[212]  Courts have historically been stricter in enforcing the Fourth Amendment when student nudity is involved.[213]

Thus, for a school district and its officials to avoid criminal or civil legal liability, if a cyberbullying investigation leads to the uncovering of images of nude minors, those images should never be distributed or shown to other school officials.[214]  The school official should promptly contact law enforcement and turn the material over to authorities without distributing it.  While school officials can discuss the nature of the material with each other for investigative and disciplinary purposes, cyberbullying policies should strictly prohibit the dissemination or showing of any nude images of children to anyone other than law enforcement.[215]

III.  A Comprehensive Cyberbullying Policy: Including Legally Valid “Policy Considerations”

While cyberbullying is a new and dangerous type of bullying that raises many novel and complex constitutional issues, the sole purpose of a cyberbullying policy—to halt cyberbullying—should not be forgotten.  There are at least three other guidelines that schools should consider in order to create a comprehensive cyberbullying policy: (1) how to set forth  procedures that properly respond to and report cyberbullying incidents; (2) how to adopt legally valid and proportionate remedies once a cyberbullying incident has occurred; and (3) how to educate students, parents, and school officials about the vices of cyberbullying.[216]  This Part of the Article will address these additional issues by incorporating the best elements of already existing statutory requirements along with some refinements to ensure that the model cyberbullying policy in Appendix B of this Article is not only constitutional, but also comprehensive.[217]

A.            Procedures for Responding to and Reporting Cyberbullying Incidents

As discussed in a previous Subpart of this Article, a school must provide notice of its cyberbullying policy to students and parents in order to survive constitutional challenges.[218]  This notice should also include information on how to identify, respond to, and report cyberbullying incidents.[219]  Because of the often sensitive nature of cyberbullying (particularly if it involves sexting), the reporting provision should specifically identify the school official[220] who will be a “safe contact” person for students who wish to report incidents of cyberbullying.[221]

In addition, because some students have “indicated that when they reported cyberbullying incidents to teachers, these conversations were not confidential and in some instances resulted in additional retaliatory harassment,”[222] the reporting provision should allow for anonymous and confidential reporting.[223]  This could be implemented in a number of ways, such as an anonymous online form on the school’s website or an anonymous drop box inside the school.  However, because the reliability and credibility of an anonymous report cannot be ascertained, school officials should neither take disciplinary action[224] nor search a student’s personal electronic devices solely based on an anonymous tip.[225]  Nevertheless, based on an anonymous tip, school officials could research the Internet on their own (to see if certain websites exist) or interview students and parents.

Finally, the reporting provision of a cyberbullying policy should put students and parents on notice that school officials may report cyberbullying incidents to law enforcement depending on the criminal nature, gravity, or repetition of the offense.[226]  Fines and imprisonment for criminal behavior are possibilities.[227]

B.            Proportionate Remedies for Cyberbullying Incidents

Schools have many options in how to respond to cyberbullying.  Such options include suspending, expelling, or counseling the student as well as contacting the appropriate authorities.[228]  While certain state statutes mandate specific remedies,[229] a majority of states leave it to schools to create remedies and punishments for cyberbullying.[230]  Courts generally defer to the school’s judgment of what level of punishment is appropriate.[231]  The court may weigh public policy interests in determining whether the punishment is too harsh, but unless the facts fall heavily on the side of harm to the student, courts will accept the form of punishment that a school chooses.[232]  As one court stated, “we are mindful that ‘[i]t is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion.’”[233]  Because of the vastly different ways schools can respond to cyberbullying, some have called for uniform policies.[234]

Schools may, for example, adopt a tiered approach to consequential remedies, which would allow schools to take into consideration the nature of the offense and the age of the student.  For a first time or minor offense, schools can mandate the cyberbully attend mandatory counseling and education sessions.  For a second or more serious offense, schools can prohibit students from participating in school activities such as sports or student government.  Prohibiting a student from participation in a school-sponsored activity is often ideal because, while it might be a stern punishment, it will not have the serious detrimental effect on the student’s academic record that school suspension would have.  Additionally, to avoid tragic school shootings like what occurred at Columbine High School,[235] it is particularly important for schools to discipline cyberbullies who are involved in student activities and purportedly serve as role models to other students.  For a serious incident of cyberbullying that includes violent speech, school suspension or expulsion may be warranted.[236]  In such cases, there may also be civil and criminal liability outside the school’s jurisdiction.[237]

In addition to consequential remedies, cyberbullying policies should also include preventive remedies.  A false accusation of cyberbullying might trigger retaliation, which would then lead to actual cyberbullying.  Thus, when considering preventive remedies, schools should also prohibit retaliation or false accusations against a target or witness of cyberbullying.[238]  In addition to delineating prohibited conduct, the cyberbullying policy should also indicate the types of behavior the school wishes to promote.[239]  For instance, the policy should reflect that schools expect students to be “good citizens—not passive bystanders—[and to report incidents] if they are aware of bullying or students who appear troubled.”[240]  Finally, after an incident of cyberbullying, schools should provide post-care counseling to both the cyberbully and victim[241] and, when necessary, “file a complaint with the Internet site or service to have the material removed.”[242]

C.            Educating Students, Parents, and School Officials

Because cyberbullying is a new phenomenon, it takes time, unfortunately, for the law to catch up to the problem.  Thus, it is imperative that a comprehensive cyberbullying policy provide for educational opportunities whenever possible.  As the Florida Department of Education has explained, education about bullying is an important tool that can help “change the social climate of the school and the social norms with regards to bullying.”[243]

Florida law mandates that schools develop “a procedure for providing instruction to students, parents, teachers, school administrators, counseling staff, and school volunteers on identifying, preventing, and responding to bullying or harassment.”[244]  The law, however, provides little guidance as to what those programs should include.[245]  Student training and education should start at a young age, since instances of cyberbullying have been reported by students as young as ten.[246]  An educational program for students should train students on: (1) the meaning of cyberbullying and the need to refrain from engaging in it—even if meant as a joke—since there are possible repercussions within the school or even within the justice system;[247] (2) how to be an ally to peers who are being bullied;[248] and (3) how to protect themselves from being cyberbullied.[249]  Schools should consider allowing students to play an active role in developing the school’s cyberbullying educational programs.[250]

In addition to providing educational opportunities for students, schools should also train parents and school officials.  Maryland law, for example, mandates such training.[251]  Part of the training program for school officials should include training specific faculty members to be “safe contacts” to whom students may report incidents of cyberbullying.[252]  Parents may be in the best position to prevent their children from “abusing available technology, or putting themselves at risk of being cyberbullied.”[253]  Parents should be educated in how to identify and prevent incidents of cyberbullying.[254]  Schools can educate and train parents by various methods including meetings and assemblies at the school, newsletters from the school or district, half-time programs at school sports events, and parent workshops.[255]  Parents should also be educated on the consequences of cyberbullying to send a clear message that schools will not tolerate cyberbullying.[256]

Conclusion

Cyberbullying presents a danger to schoolchildren.  Because cyberbullying involves the Internet and the use of cell phones, it is more pervasive, relentless, and cruel than off-line bullying.  There is simply no escape for victims of cyberbullying.  Indeed, cyberbullying follows a victim from their school to their home, and possibly to their adult life.  Legislatures and public schools are taking measures to combat cyberbullying.  However, with this new medium for bullying comes many new and challenging legal issues.

These new issues can be resolved.  A cyberbullying policy that carefully adopts language to deal with a public school’s jurisdiction over off-campus speech that either materially disrupts school activities or impinges on another student’s rights should address First Amendment concerns.  A cyberbullying policy that sets forth clear definitions of terms and gives proper notice to students and parents should ensure that due process is met.  And finally, a cyberbullying policy that establishes a reasonable process by which school officials can conduct searches of students’ personal electronic devices when investigating cyberbullying claims should address Fourth Amendment issues.  The model cyberbullying policy set forth in Appendix B attempts to do just that—to provide a step in the right direction so that public schools can ensure a safe environment without trampling students’ constitutional and legal rights.

Appendix A

Chart of Current State and Federal
Antibullying Statutes

Appendix B

Model Cyberbullying Policy For Public Schools[370]

It is the policy of this school that all students and school employees enjoy a safe and secure educational setting.  The school prohibits cyberbullying, as defined herein.  Nothing in this policy is intended to infringe on the constitutional rights of students or school employees.

1. Definitions

(a)   The term “cyberbullying”[371]

(i)     means the use of any electronic communication, by individuals or groups, to

(1)   make a true threat against a student or school employee;[372]

(2)   materially disrupt school operations;[373] or

(3)   substantially impinge on the rights of another student such as, but not limited to: creating reasonable fear of harm to the student’s person or property; creating a substantially detrimental effect on the student’s physical or mental health; substantially interfering with a student’s academic performance or interfering with the student’s ability to participate in or benefit from the services, activities, or privileges provided by the school; or being so severe, persistent, or pervasive as to cause severe emotional distress.[374]

(ii)   includes conduct that is based on, but not limited to, a student’s actual or perceived[375] race, color, national origin, gender, religion, disability, sexual orientation or gender identity, distinguishing physical or personal characteristic, socioeconomic status, or association with any person identified in section 1(a)(ii).

(b)   As used in this policy, the term “electronic communications” means communications through any electronic device, including, but not limited to, computers, telephones, mobile phones, pagers, and any type of communication, including, but not limited to, emails, instant messages, text messages, picture messages, and websites.[376]

2. School Jurisdiction[377]

(a)   No student shall be subjected to cyberbullying by an electronic communication that bears the imprimatur of the school regardless of whether such electronic communication originated on or off the school’s campus.

(b)   The school shall have jurisdiction to prohibit cyberbullying that originates on the school’s campus if the electronic communication was made using the school’s technological resources or the electronic communication was made on the school’s campus using the student’s own personal technological resources.

(c)    The school shall have jurisdiction to prohibit cyberbullying that originates off the school’s campus if: [378]

(i)     it was reasonably foreseeable that the electronic communication would reach the school’s campus; or

(ii)   there is a sufficient nexus between the electronic communication and the school which includes, but is not limited to, speech that is directed at a school-specific audience, or the speech was brought onto or accessed on the school campus, even if it was not the student in question who did so.

3. Notice[379]

(a)   Parents shall receive written notice of this cyberbullying policy at the beginning of each school year.

(b)   There shall be an annual process for discussing this policy with students in a student assembly.

(c)    For access to the school’s technological resources, including but not limited to email and Internet access, students and parents shall review, sign, and return the school’s acceptable use policy which prohibits the use of the school’s technological resources for cyberbullying.[380]

(d)   This policy, along with the school’s acceptable use policy as described in section 3(c), shall be prominently posted at school on student bulletin boards and in computer labs, and on the school’s website.

4. Investigations

(a)   Parents shall be notified as soon as practicable if their child is involved in a school investigation concerning cyberbullying.[381]

(b)   School officials may search and seize a student’s personal electronic device, including but not limited to cell phones and computers, if:[382]

(i)     the student is using the electronic device at school in violation of school rules; or

(ii)   the school official

(1)   has reasonable grounds for suspecting the search will turn up evidence that the student has violated or is violating either the law or the school rules; and

(2)   the search is limited in scope by being reasonably related to the objective of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

(c)    Reasonable grounds, as set forth in section 4(b)(ii)(1), will not be established solely on anonymous reports.[383]

(d)   If the cyberbullying victim or student reporting the cyberbullying is willing, the school shall initiate an interview to determine the nature of the bullying, the name of the participants, where and how the information was being sent, and how far the images or messages have spread.[384]

(e)    Any evidence of cyberbullying discovered during an investigation should be preserved.  Such actions may include, but are not limited to, saving the victim’s cell phone, text, or email messages; and printing or copying posts or other electronic communications available on websites before removing them.[385]

(f)     If, during the course of a cyberbullying investigation, images of nude minors are discovered, those images should not be distributed or shown to other school officials.  The school official who discovered the image should promptly contact law enforcement.[386]

5. Reporting[387]

(a)   Specific faculty members [insert names here] will be the main contacts for students who wish to report incidents of cyberbullying.  Students, parents, and other school officials may also contact the principal to report incidents of cyberbullying.

(b)   Anonymous and confidential reports of cyberbullying incidents are allowed, but they will not provide the sole basis for a search of a student’s personal electronic device or for disciplinary action.

(c)    School officials may report incidents of cyberbullying to law enforcement depending on the criminal nature of the offense, or the gravity and repetition of the offense.

6. Remedies[388]

(a)   An individual student whose behavior is found to be in violation of this policy will be subject to discipline.  In determining the disciplinary action, the school will take into consideration the nature of the offense, the age of the student, and the following:

(i)     For a first-time or minor cyberbullying offense, the school may mandate that the student attend mandatory counseling and education sessions.

(ii)   For a second or more serious cyberbullying offense, the school may prohibit the student from participating in school activities or events.

(iii)  For a serious incident of cyberbullying, the school may suspend or expel the student.

(b)   No student shall retaliate or make false accusations against a target or witness of cyberbullying.

(c)    Whenever practicable, the school shall provide counseling to all students involved in a cyberbullying incident.

(d)   Whenever practicable, the school shall file a complaint with Internet sites or services containing cyberbullying material to have the material removed.

7. Education[389]

(a)   The school shall provide an annual educational program for students, parents, and school officials.  This education program shall train individuals:

(i)     on the meaning of and prohibition against cyberbullying, including the provisions of this policy;

(ii)   how students can report cyberbullying incidents;

(iii)  how students can be an ally to peers who are being cyberbullied; and

(iv)  how students can protect themselves from being cyberbullied.

(b)   The school shall encourage students to play an active role in developing the school’s cyberbullying educational programs.

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